Another day, another delay. Not content with nearly two dozen unilateral changes to the health care law–many of quite dubious legality–the administration yesterday announced yet another delay to Obamacare.[1] This newest delay will permit members of non-qualified health plans in the non-group market to keep them for another two years (through 2016). Got that? Even though he signed a law banning such plans starting January 1, 2014, President Obama has unilaterally granted permission to extend the life of plans persistently derided by various administration spokespeople (including the president himself) as “substandard,” “cut-rate,” or “junk” plans offered by “ bad apple” insurers.[2]

Conservatives such as myself are ambivalent about this latest delay. On the one hand, we havebeenarguingforyears that a delay in implementing this misguided law was advisable. While we are not exactly moving at light speed, we are on a freight train moving in exactly the opposite direction of where our health system needs to head–away from patient-centered control of decision-making in the direction of highly centralized control of such matters. Thus, anything that slows down this train arguably is a good thing (though admittedly someconservativesdemur on this point). But no conservative I know thinks it’s a good idea to flout the law and the Constitution. Unlike the first reprieve for cancelled plans, for which one might have made a case for expediency (the botched rollout of the Exchanges having put way too many people in the position of literally being unable to replace cancelled coverage in a timely fashion), this newest delay is transparently political. The original delay would have meant a brand new wave of controversial health plan cancellations right in the middle of the 2014 elections. As one industry expert told The Hill: “I don’t see how they could have a bunch of these announcements going out in September…Not when they’re trying to defend the Senate and keep their losses at a minimum in the House. This is not something to have out there right before the election.”

Ironically, even though we have a decade’s worth of public declarations by Barack Obama that he favors a single payer health care, the lawless manner in which he is implementing the new law is also becoming one of the strongest arguments against trying to “transition” to the single payer system he favors.

Is President Obama Really a Progressive Fascist?

My AEI colleague, Jonah Goldberg, has written brilliantly and eloquently about “liberal fascism,” taking 24 pages to explain the intimate connection between fascism and progressivism. He notes that the term originally was coined as a badge of honor by H.G. Wells in 1932 in a speech to Oxford University’s Young Liberals in which he he encouraged them to become “liberal fascists” and “enlightened Nazis.” Mr. Goldberg correctly characterizes modern liberalism as an “ideology of good intentions” and goes on to define fascism as:

a religion of the state. It assumes the organic unity of the body politic and longs for a national leader attuned to the will of the people. It is totalitarian in that it views everything as political and holds that any action by the state is justified to achieve the common good. It takes responsibility for all aspects of life, including our health and well-being, and seeks to impose uniformity of thought and action, whether by force or through regulation and social pressure (p. 22).

To be sure, manyargue that President Obama is not a progressive, but instead a very pragmatic politician. However, after his 2012 re-election, the president appears to have been more willing to reveal his natural temperament. David Corn (whose progressive credentials presumably are above reproach) wrote glowingly on the 2013 State of the Union address, which presented a powerful progressive agenda.

There’s no question President Obama deliberately eschewed explicit pursuit of a single payer health plan and also abandoned the public option purely for reasons of political expediency. However, I have seen no evidence whatsoever that he has altered his core belief that single payer health care would be the best ending point for the U.S. health care system even if it might take 10 to 20 years to get there. We all would do well to remember that political expediency led candidate Obama to roundly criticize the individual mandate during the Democratic primary, a position he quickly abandoned once he got into office. If there’s anything we now should know about this president is that he will do or say anything–truthful or not–to get the public to accede to his desired policy prescriptions (however misguided).

How a Lawless Rollout Undermines the Case for Single Payer Health Care

To date, there have been 37 significant changes to the law. No one disputes the legitimacy of the 15 changes approved by Congress and signed into law. Two other changes made by the Supreme Court also were of contestedlegitimacy, but the president cannot be blamed for this. But more than half of the significant changes came in the form of unilateral administration actions for which the president and his advisors should be held to account. Not only did many of these violate the letter of the law as written, they also were carried out with procedures that violated the decades-old Administrative Procedures Act (e.g., lack of notice, failure to secure public comments). A recent letter from the National Federation of Independent Business to IRS Commissioner John Koskinen nicely codifies concrete illustrations of these various violations.

Of course, Obamacare is not the only domain in which the former constitutional law lecturer from University of Chicago has exercised his rather muscular view of the powers of the presidency. Even progressive law professor Jonathan Turley views this presidential unilateralism as “very dangerous” to American liberty, characterizing his “usurpation of authority” as unprecedented in American history.

The president and his supporters well recognize that as Charles Krauthammer has pithily put it, Obamacare’s “unraveling would catastrophically undermine their underlying ideology of ever-expansive central government providing cradle-to-grave care for an ever-grateful citizenry.” For that reason, he has been unrelenting and unhesitating in his willingness to do what it takes (some have characterized this as “making up Obamacare as he goes along”) to get the law firmly embedded. As one critic observed more than three years ago: “ObamaCare was designed to be the governmental equivalent of kudzu—growing everywhere, propagating by multiple means, and sinking in its roots and becoming impossible to control.” Everything we’ve seen in the implementation of the law is consistent with this view. Even though common sense would have dictated delaying the Exchanges for a full year in light of the woeful state of the system’s unreadiness, the administration instead plunged full speed ahead, essentially making some special accomodations for some passengers to hop onto the train a few stations further down the line than originally planned. This reckless haste was against the recommendation of CMS’s top cybersecurity official, putting millions of Exchange members at risk of identity theft.

And it perfectly illustrates what happens when politics gets introduced into health care. What should be solid business or personal decisions get hijacked into political decisions. What’s good for politics way too often is not very good for policy or the people policy is supposed to help. Having the president unilaterally declare extensions of the employer mandate without statutory authorization may be good politics, but it’s terrible policy, creating enormous uncertainty for employers. One labor lawyer says the delay will give low-paid workers (who will be eligible for generous federal subsidies to buy health insurance in 2014) possible grounds to sue their employers in 2015. Seasoned political observer Michael Barone has noted that because the delays were not codified in a statute, there is nothing to stop a future president from retroactively collecting employer penalties owed during the transition relief period.

But if so much is at the whim of the president–especially one so transparently willing to play politics when it comes to exercising his “discretionary” author–who would favor seeing such arbitrary and capricious power extended even further under a single payer system? After all, if a president can lopsidedly distribute various subsidies and waivers to favored political groups such as unions[3] what is to stop a future president from doing the same under a single payer system? If a president can unilaterally decide to waive the law (whether for a year or longer) for one group of employers while enforcing it for a different group (even though the law provides no such distinction), what is to stop a future president from deciding a single payer law will apply differently to one favored group (e.g., city-dwellers, single women or a particular ethnic group) compared to others?[4] If a president can unilaterally opt not to enforce certain provisions of the law on grounds they are not politically expedient (e.g., stringent payment restrictions on providers such as the Sustainable Growth Formula embedded in the Balanced Budget Act of 1997) what is to stop a future president from clawing back the “excess payments” on grounds they were made in contravention to statutory law?

Look, there’s plentyofreasonssinglepayer is a reallybad idea. But the shamelessly politicized and too often lawless rollout of Obamacare has given one more solid argument against trying to steer the American health care system onto a single payer track. Single payer sounds great to progressive fascists like Barack Obama. But to most Americans, it is a dead end destination.

INVESTORS’ NOTE: The biggest publicly-traded players in Obamacare’s health insurance exchanges are Aetna (NYSE:AET), Humana (NYSE:HUM), Cigna (NYSE:CI), Molina (NYSE:MOH), WellPoint (NYSE:WLP), and Centene (NYSE:CNC), in order of the number of uninsured exchange-eligible Americans for whom their plans are available.

Footnotes

[1] As of March 5, Galen Institute has catalogued a total of 37 significant changes to the law. Of these, only 40% (15) were approved by Congress and signed into law and 2 were made by the Supreme Court. The remaining 20, including the latest delay, were all made by unilateral administrative actions.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Comments

This is not the first time I have seen articles in Forbes that don’t really belong. If Forbes can’t be more factual and objective, I will go somewhere else for my news.

Raking Obama over the coals for the extreme actions of our House of Representatives is nothing but very slanted political rhetoric that has no purpose to inform, but serves only the purpose to manipulate those who don’t bother to figure out things for themselves, and might have a predisposition to propping up ignorant ideological views that happen to coincide with what they mistakenly take for a truth that just happens to serve their interest.

There are far too many that have taken this primrose path.

So please, Rorbes, post articles that do some good rather than manipulate.

“Lawless Rollout”? Have you forgotten that Obama was the editor of Harvard Law Review? I find it likely he knows more about the law than you ever will.

“Progressive Fascism”? Why should I care challenge facts supporting such a bizarre and far out notion?

If you want a good fact, here is one. Anyone can NOW get health insurance in California without considering any precondition. That certainly would NOT have EVER happened if Obama hadn’t pursued the Affordable Care Act. That is HUGE!

Along side you and your so called “facts”, Obama stands head and shoulders above you.

I think that There will be no budging you from your point of view. I suspect that any time anyone approaches you with a more reasonable view of things, you are just going to dig out your citations and rhetoric and show them “the facts right there in black and white!”. So I see no point in arguing with you.

But what I will tell you is my own personal experience with health care. After I lost my health insurance, I was supposed to get a colonoscopy every 3 years to trim out some polyps that would certainly turn cancerous. I eventually found a local hospital that would provide the service. They knew I supposed to get the colonoscopy every 3 years but I had to wait beyond that time to get the service. They scheduled me years ahead knowing full well that when I turned 65 I would get Medicare…so guess when they scheduled me? I should not have been put through that unnecessary risk.

When 65, I signed up for Kaiser Permanente, and later I got prostate cancer, I decided to move to Original Medicare with a United Health Care Supplemental plan because I wasn’t happy with the KP cancer treatment options. Under Original Medicare I could self-refer to anywhere in the United States that accepted Medicare assignment.

Changing insurance meant dropping the old insurance before signing up for the new insurance, but I had Guaranteed Issuance under the modifications to Medicare in California Law. What happened at that point is that United Health Care did everything in their power to prevent me from getting the insurance. It was bizarre because United Health Care’s owe local agents were telling the Home Office that I had guaranteed issuance, but United Health Care ignored this and ultimately sent me a rejection letter. It was only when the Health Advocates working for HiCAP in the office for the Council on Aging got on the phone and had a marathon 3 hour conversation with United Healthcare that got results. United Healthcare finally caved and gave me the insurance, but I lost several months on the treatment of my Cancer.

Under Obamacare, neither of these experiences would have ever happened to me. I would have immediately gotten the help that I needed when I needed it.

Barack Obama’s batting average against the Supreme Court suggests his views of the law are not exactly mainstream. What he “knows” about the law too often has been wrong. I think at this juncture it is fair to say there hasn’t ever been a piece of domestic policy legislation (except perhaps the Environmental Protection Act) that has been so fiercely litigated as Obamacare. Yet this hasn’t stopped this arrogant president from repeatedly crossing the legal line in its implementation.

Jonathan Turley is very far from a right-wing Tea Partier, so when even he laments the president’s lawless acts, any impartial observer should recognize there’s a genuine problem here.

To correct the record, well before Barack Obama arrived on the political scene, there actually were states that got rid of pre-existing condition restrictions and moved to community rating, with pretty disastrous results. http://www.ahipcoverage.com/2012/03/27/ahip-states-guaranteed-issue-and-community-rating-reforms-without-a-mandate-failed/

The reality, there are far better ways of dealing with pre-existing conditions that don’t create the predictable problems we are now observing with Obamacare. http://www.nationalaffairs.com/publications/detail/how-to-cover-pre-existing-conditions.

One final fact. It’s encouraging Obamacare appears to have helped you out. But for every big winner such as yourself, there’s at least 3 or more big losers. http://www.forbes.com/sites/theapothecary/2014/01/28/the-chart-that-could-sink-obamacare/ Moreover, you have described a situation in which the law said one thing and the carrier–evidently in the face of strong economic incentives to do so–behaved differently. It’s delusional to think that Obamacare will magically eradicate such anecdotes from the health policy landscape. Forcing insurers to take high-cost individuals without being able to charge even $1 more in premiums for the privilege is simply a prescription for your sad story to be replicated all across the nation.

You wrote: ” Anyone can NOW get health insurance in California without considering any precondition. That certainly would NOT have EVER happened if Obama hadn’t pursued the Affordable Care Act. That is HUGE!”

This already “happened” before Obamacare because California is one of 35 states that already had high risk pools with guaranteed issue [1], so it was not necessary to pass Obamacare.

Pre-existing conditions outside of high risk pools did not mean rejection, but a probationary period for that condition which was a reasonable cost control measure. Removing this important cost control measure for every insurance policy forces premiums to be higher and doctor networks to be smaller. That is “HUGE” as well. It’s also “HUGE” that businesses have already started cutting hours and firing people due to the mandates of Obamacare. [2] The added costs from guaranteed issue contribute to the law’s numerous side effects. There’s plenty more of the so called “benefits” that are nullified and overtaken by the detriments they create.

Excellent point. In the CA high risk pool, premiums were capped at 125% of normal premiums for someone in a given age category. http://kaiserfamilyfoundation.files.wordpress.com/2013/01/8041.pdf

In contrast, the temporary Obamacare high risk pool would have charged members the identical premium as everyone else. Thus, belonging to the Obamacare pool would be slightly less expensive, but people also were required to have been without insurance for at least 6 months before joining.

Now that the guaranteed issue rules are in place, a person with pre-existing conditions now can buy coverage at standard rates without a waiting period, but this, as you say, creates perverse incentives. It’s the equivalent of government forcing home insurers to sign up people whose houses have started burning down or auto insurers to cover already wrecked cars etc. Most state high risk pools struck a reasonable balance–offering guaranteed issue, but also allowing insurers to charge a higher premium that was midway between an actuarially fair rate and the maximum allowable rate. CA was unusual in capping rates at only 125%. Most states capped them at 200% of standard premiums. So this arrangement still gave people a strong incentive to maintain continuous coverage while still giving them the guarantee that they could get coverage.

I think your biggest mistake is jumping the gun with your criticisms. I have been a long term fan of Edwards Deming, and one of the first thing he says about problem solving, is not to try to change things until the situation stabilizes, because before that you are never really going to know enough to make the best choice.

So here is what I think of your points.

I pointed out “Progressive Fascism” and called it a bizarre and far out notion. After I did that, “Progressive Fascism” was removed from the title of your article. Point goes to me.

Next, how does, “Obamacare’s Lawless Rollout” become “I think … there hasn’t ever been a piece of domestic policy legislation … that has been so fiercely litigated as Obamacare. “? Isn’t that an oxymoron?

About Jonathan Turley’s Constitutional concerns., I think that somehow the Constitution will last until Obama retires from office in a little more than 2 years.

As to your first reference link, a subpage of ahipcoverage.com

The link is to an article about a report from Milliman actuaries commissioned by AHIP, the main lobbying arm of the Insurance Industry. Both the web page and Chris’s link to it may be in violation of the distribution policy of the report, which requires it to be distributed only in its entirety.

The conclusions you seem to draw from it seem to me to be fallacious. The one state mentioned in the report that does succeed to lower the number of uninsured is the only state in the report that mandated insurance. Also, the worse problem seems to be the insurers going to other states or lack of market competition. Then if guaranteed issuance is nation wide, and these markets compete through the exchanges, and the exchanges are opened up to those who wants to play, there will be competition. This problems may well go away unless the Insurers all leave for India.

Concerning your second reference link a subpage of nationalaffairs.com

I thought first part of the article was articulate and didn’t seem to be bad at all with a nice title, “How to Cover Pre-existing Conditions”. It covered a lot of interesting facts and the like. A lot of it reminded me of parts I know to be in the Obama plan. I thought to myself, maybe there is some hope for these people. Yes, there were a few little jogs, but that is OK, after all these people are to the Right, there is bound to be some of that. It wouldn’t be so bad though, and I would not object to it if Congress were so gracious.

But then as I read further, the flavor starts to change, and over 27000 characters into the article, Obamacare is mentioned by name for the first time, in a section called, “OBAMACARE’S SHALLOW POOLS “

Now the gloves come off, and we have the“Fox News” non-news cum Rush Limbaugh style full steam ahead. So what started out wearing the sheep’s cloths of a thoughtful piece of analysis and information, shows its true nature as a useless bashing propaganda piece of the same ilk as your “Progressive Fascism”.

What labels this article as a fraud, is that there is not a single word about Obamacare that comes close to an objective, fair minded consideration of his plan or ideas in any way similar to the discussion of alternatives. There is no voice to ANY idea except those that are politically owned. It is all the standard ideological buzz words mantra that some psychopathic advertising clone studied for its effect on outcomes as long as one keeps focused on the “message”. That is the poorest excuse for problem solving that one can imagine. It is all numbers and statistics, and sorry, but there is no such thing as statistics with only one data point so it doesn’t really apply to people. The article does no consider, address, mention, analyze, or face the plight of any single, real live human being, and without that, the real problems will NEVER get solved.

What you don’t get is that only human beings are fundamental. Everything else is derivative. The Universe starts and ends with each individual. This is what we need to be concerned about and bend our purposes to make whole. There is nothing else that ultimately can have meaning without people. That is to say, once you take the human out of the equation, there is nothing left. Without people there are no hopes, thoughts, aspirations, strengths, weaknesses, duration, consideration, inspiration, building up or tearing down, progress, or soap suds….or money nor even the concept of money.

And BTW you can add to that list that without people there are no businesses, trade unions, markets, advertisers, politicians, Presidents, laws, and especially just for you, Policies.

John, I’m not sure whether to laugh or cry at your comments. I would like you to show me what legal document or otherwise allows our Executive Branch to unilaterally change laws. I would be happy to point to the Constitution to point out the basic principles surrounding checks and balances as well as how laws are created. Furthermore, and a point often overlooked, is that any bills that raise revenue (as the ACA does since it was deemed a tax by the Supreme Court) must originate in the House of Representatives (again, see the Constitution). The ACA orginiated in the Senate. Perhaps something to shrug off given that both the House and Senate were controlled by the Democrats at the time, but it still violates the Constitution plain and simple. Don’t say just because Obama was a Constitutional scholar that he knows more about the author or that the author’s points aren’t valid. Open your eyes and come armed with some facts next time. I would love to hear back from you.

AJ, I haven’t heard that much from the courts on this issue, have you? What I did hear is Obama’s speech and the immediate and the visceral Republican political response. I think this is just more political motivated posturing and spin doctoring.

The Republicans are pushing as hard as they can, and Obama is pushing back just as hard, tit for tat.

The evidence is that after Obama’s speech, it was clear Obama had some tools in his belt that he could and would use, and the Republicans undoubtedly decided that they had better do everything they possibly they could about this. So they proceeded true to form.

And no, AJ, I don’t think I will buy into any of the nightmares of the many political drama queens on steroids bought by the likes of Lobbyists and Big Wigs like the Koch Brothers.

You know, of course, that it isn’t ultimately the Democrats, or the even the Republicans that are the fundamental cause of all this mess. It is the financial dynamics of elections because we don’t primarily public financing of elections. Politicians spend most of their time trying to get elected and stay in office rather than doing their job. It is also because many politicians are beholden to many contributors who are unbalanced in the direction of accumulating wealth over helping the World to become a better place for everybody. These contributors don’t understand that money is just paper with marks on it, and the only real value of money derives from the only real wealth, which is that of human beings being made whole in their home, lives, and health.

I think the balance of powers is working just fine. Mid term congressional elections are coming up, and the courts are certainly there in case anyone wants to sue over serious political and Constitutional matters. The legislative and judicial will have the chance to work as modified by the will of the people through future elections.

John, you have failed to provide any proof that Obama is legally allowed to make the moves he is making. Just because he makes a speech saying that he’ll do everything he can to enact his political will doesn’t make it right. While I agree with your points about our politicians (on BOTH sides of the aisle) being manipulated by lobbyists, that is not what this discussion is about. Stick to the main point – whether or not what Obama is doing is legal. Don’t get distracted from that by bringing up how Republicans hate Obama and points about the Koch brothers. That is irrelevant to facts being discussed and what the Constitution says. There ARE actually lawsuits in the courts over this matter. The problem is it is very difficult to sue the Executive Branch, and Obama knows that even if things do go to court any decision would likely come after his extensions/manipulations are over. It’s devious and it’s wrong. You may like the balance of power and what Obama is doing. But the problem with you liberals in this matter is that you have no integrity. You can’t call things for what they are and have a sane discussion with people like me on the other side of the aisle. I am perfectly willing to admit that the Republicans as a whole aren’t a bunch of Boy Scouts and will call them out for their shameful behavior when it arises. The question is, can you do the same with the people you generally support?